In an effort to clarify the definition of “navigable water” under the Clean Water Act (CWA), the Environmental Protection Agency (EPA), in conjunction with the U.S. Army Corps of Engineers, issued a proposed rule on April 21, 2014 that would redefine what navigable water means under the law. As a result, the EPA’s Waters of the United States Rule (the WOTUS Rule) would allow the agency to claim jurisdiction over nearly all water in the country.
In the eyes of the EPA, the WOTUS Rule is simply a way to comply with recent rulings from the U.S. Supreme Court that requested more clarity regarding what types and bodies of water are covered under the CWA.
In the eyes of those affected by this new definition, the rule is seen as overreach by a federal agency unaware of the major impact its actions will have in the real world.
This expansion of federal authority will mean that private clubs with brooks, creeks, occasional waterways, ponds, rivers and streams might have to comply with EPA requirements under the CWA, posing significant issues regarding the use of chemicals and fertilizers and runoff. In the end, the WOTUS rule could mean that club leaders will be burdened with regulatory compliance issues over water that was not previously regulated.
The Fight Against the Rule
Shortly after the proposed rule was released, NCA and many of our golf industry allies joined the Waters Advocacy Coalition (WAC). WAC members include agriculture, construction, manufacturing and business trade associations that all feel this rule was a massive agency overreach that will have a detrimental impact on their members.
Our first effort at stopping this rule was to support a bill by then-Rep. Steve Southerland, II (R-Fla.) entitled the Waters of the United States Regulatory Overreach Protection Act. His bill gained strong bipartisan support in late 2014 and passed the House by a vote of 262-152. After the House action, the bill headed to the Senate; however, then-Senate Majority Leader Harry Reid (D-Nev.) would not bring it up for a vote. At the end of 2014, we were left with no further route for our legislative response to the WOTUS Rule.
Our next action was to educate state governors and state environmental management agencies on the rule’s impact. By highlighting the fact that the federal government would now exert control over water that has always been in the states’ control, we soon found significant support for stopping the rule from those local leaders. Indeed, a total of 34 states have told the EPA that the WOTUS Rule should either be revised or withdrawn.
In addition to our state outreach efforts, NCA and our golf industry allies submitted comments to the EPA strongly opposing the proposed WOTUS Rule. We were also signatories on comments submitted by WAC. These comments were part of more than 900,000 submitted to the EPA from trade associations, businesses, state and local governmental agencies, as well as coalitions like ours, all suggesting that the rule be scrapped.
With the start of 2015 and with the new Republican majority in the Senate, we have restarted our efforts in Congress to rein in this rule. Our main focus this year has been on using the Congressional Review Act (CRA) to kill the rule. The CRA allows each chamber of Congress to pass a Resolution of Disapproval, which would require the EPA to remove the rule from the books completely.
Sen. John Barrasso (R-Wyo.) has indicated he will file the resolution should the rule be finalized without our concerns being addressed. Under the CRA, the Senate must pass the resolution within 60 days from the date the measure is introduced. Therefore, we are assured that the Senate Resolution of Disapproval will be acted upon quickly when the final WOTUS Rule is released.
Finally, we have begun approaching members of the House and Senate Appropriations Committees to suggest language that would remove funding for the rule in the next fiscal year. Of course, any success in passing such a measure for fiscal 2016 will not help us for the rest of this fiscal year; thus, this option is being pursued at the same time we work on passing the Resolution of Disapproval.
The WOTUS Rule in the Spotlight
On February 4, the House Transportation and Infrastructure Committee and the Senate Environment and Public Works Committee held a rare (and much-anticipated) joint hearing on the WOTUS Rule. The fact that this was a bipartisan and bicameral hearing shows just how much concern this proposed rule is generating from Congress. EPA Administrator Gina McCarthy and the head of the U.S. Army Corps of Engineers were both present and had to deal with tough questions.
The opening comments from the chairman of the House committee, Rep. Bill Shuster (R-Pa.), and the chairman of the Senate committee, Sen. James Inhofe (R-Okla.), echoed the concerns our industry has expressed since last April.
Specifically, Shuster cited the fact that the EPA’s proposed rule covers water that was never expected fall under the CWA. Inhofe expressed his deep concern that the rule would allow the EPA to exert control over water that flowed from small steams or brooks that are in existence for a limited time throughout the year—known as ephemeral waterways— causing businesses to worry about potentially polluting water that is not even present for the entire year.
In her response, McCarthy tried to allay their concerns by indicating that the rule would simply better define which water is covered. Specifically, she said that only those waterways with a “significant nexus to navigable water” would be under the new rule. The problem is that the rule removes the current review process to determine if there really is a significant nexus to navigable water. Instead, it applies a more rigid, standard formula that could mean a number of waterways on private clubs will fall under the CWA control.
One committee member, Sen. Barbara Boxer (D-Calif.), felt that the concerns expressed by both chairmen were focusing on a “mythical rule” and not the real rule offered by the EPA. She believes that all of the issues raised by the chairmen on behalf of the business community will be resolved with the release of the final rule. In essence, she advocated simply trusting the agency to do the right thing—not something many in the business community are willing to do
In the end, the Administrator had to fight back the perception that her agency overstepped its bounds. With many at this hearing skeptical of the EPA’s rationale for issuing the rule and many more uncomfortable with just waiting and hoping the EPA does what it should to resolve these issues, it is safe to say more questions were raised about the WOTUS Rule than were answered
Conclusion
While we continue to pursue different ways to curtail this rule and while support for stopping it continues to be strong on Capitol Hill, the EPA has not indicated that it will reconsider its new definition of navigable water. The EPA has sent signals that it has weathered the storm and will release the final rule without any significant changes from the proposed rule. For private clubs, that means some may have to deal with the EPA for the first time in a brand new way. Clubs could be required to secure new federal and state permits for their golf course waterways and contemplate new fertilizer and chemical treatments for their courses to minimize or mitigate runoff issues into their water. In short, the WOTUS Rule could financially impact clubs across the country. If the final WOTUS Rule is released without changes and the president declines to sign either a Resolution of Disapproval or an appropriations bill that removes funding for it, our only other recourse will be to initiate litigation against the EPA. With the final rule expected to be issued by mid-summer, we are preparing our lawsuit—with a requested injunction—now. As always NCA will continue to focus our energy and resources on fighting this rule. With luck, the EPA will listen to our concerns. If not, club leaders may need to prepare for the federal government having more of a say regarding what you do with the water on your course.